Sellassie v. Griffith

United States District Court, E.D. Missouri, Eastern Division

August 16, 2016

ENOCH SELLASSIE, Plaintiff,v.CINDY GRIFFITH, et al., Defendants.

MEMORANDUM AND ORDER

This
matter is before the Court on plaintiff’s motion for
leave to commence this action without payment of the required
filing fee [Doc. 2]. After reviewing plaintiff’s
financial information [Doc. 3], [1] the Court will grant the
motion and will assess plaintiff an initial filing fee of
$4.53, which is twenty percent of his six-month average
deposit. Additionally, the Court will order plaintiff to file
an amended complaint.

28
U.S.C. § 1915(e)

Pursuant
to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a
complaint filed in forma pauperis if the action is frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is
immune from such relief. An action is frivolous if it
“lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989);
Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992). An
action is malicious if it is undertaken for the purpose of
harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes,
656 F.Supp. 458, 461-63 (E.D. N.C. 1987), aff'd826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a
claim if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974
(2007).

The
Complaint and Supplements

Plaintiff,
an inmate at the Potosi Correctional Center, brings this
action under 42 U.S.C. § 1983 for the violation of his
constitutional rights. Plaintiff asserts claims of excessive
use of force and deliberate indifference relative to an
injury to his left foot. In addition, plaintiff claims that
legal reference books were destroyed. He is suing defendants
in their individual capacities.

Discussion

At the
outset, the Court notes that plaintiff has failed to include
all his claims in one pleading, and he has filed numerous
exhibits, making it difficult to ascertain the precise nature
of his claims as to each of the named defendants.

Because
plaintiff is proceeding pro se and in forma pauperis, the
Court will give him an opportunity to file an amended
complaint in this action. In so doing, plaintiff should
select the transaction or occurrence he wishes to pursue, in
accordance with Rules 18 and 20 of the Federal Rules of Civil
Procedure, and file an amended complaint, limiting his facts
and allegations to the defendant(s) involved in said
occurrence. Plaintiff should only include in his amended
complaint those claims that arise out of the same transaction
or occurrence, or simply put, claims that have some relation
to each other. See Fed.R.Civ.P. 20(a)(2).
Alternatively, plaintiff may choose to select one defendant
and set forth as many claims as he has against that single
individual. See Fed.R.Civ.P. 18(a).

Moreover,
plaintiff is advised that all claims in an action must be
included in one, centralized complaint form, as neither the
Court nor defendants wish to search through supplemental and
prior pleadings in order to piece together plaintiff's
claims. As such, plaintiff is warned that the filing of an
amended complaint replaces the original complaint,
supplements, and all previously-filed pleadings and exhibits,
and therefore, he must include each and every one of the
claims he wishes to pursue in the amended complaint. See,
e.g., In re Wireless Tel. Fed. Cost Recovery Fees
Litig.,396 F.3d 922, 928 (8th Cir. 2005). Any
claims from the original complaint, supplements, and/or
pleadings that are not included in the amended complaint will
be deemed abandoned and will not be considered. Id.
Plaintiff is advised that the amended complaint will replace
the original complaint and supplements and will be the only
pleading this Court reviews. Id. If plaintiff wishes
to sue defendants in a particular capacity, plaintiff must
specifically say so in the amended complaint.

Plaintiff
is reminded that he is required to submit his amended
complaint on a court-provided form, and it must comply with
Rules 8 and 10 of the Federal Rules of Civil Procedure.
Specifically, in the "Caption" of the form
complaint, plaintiff shall set forth the name of each
defendant he wishes to sue; and in the "Statement of
Claim, " plaintiff shall start by typing or legibly
writing the first defendant's name, and under that name,
he shall set forth in separate numbered paragraphs the
allegations supporting his claim(s) as to that particular
defendant, as well as the right(s) that he claims that
particular defendant violated. If plaintiff is suing more
than one defendant, he shall proceed in this manner with each
of the named defendants, separately setting forth each
individual name and under that name, in numbered paragraphs,
the allegations specific to that particular defendant and the
right(s) that he claims that particular defendant violated.

It is
improper for plaintiff to name forty-four defendants and
generally allege that “defendants” violated his
constitutional rights. Rather, he must set forth his claims,
separately and in numbered paragraphs, as to each named
defendant, the specific allegations relative to that
particular defendant, as well as the right(s) allegedly
violated. Plaintiff is instructed not to attach any exhibits
to the amended complaint.

The
amended complaint must contain short and plain statements
showing that plaintiff is entitled to relief, the allegations
must be simple, concise, and direct, and the numbered
paragraphs must each be limited to a single set of
circumstances. If plaintiff needs more space, he may attach
additional sheets of paper to the amended complaint and
identify them as part of the "Caption" or
"Statement of Claim." Because the Court is allowing
plaintiff to amend his complaint, it will take no action as
to the named defendants at this time.

If
plaintiff wishes to pursue additional claims against
additional defendants, and the claims to not arise from the
same transaction or occurrence he has chosen to advance in
his amended complaint, he must file each such claim(s) on a
separate complaint form and either pay the entire filing fee
or file a motion for leave to proceed in forma pauperis.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Last,
the Court will deny, without prejudice, plaintiff&rsquo;s
motions for appointment of counsel [Docs. 5 and 14]. &ldquo;A
pro se litigant has no statutory or constitutional right to
have counsel appointed in a civil case.&rdquo; Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998). When
determining whether to appoint counsel for an indigent
litigant, the Court considers relevant factors, such as the
complexity of the case, the ability of the pro se litigant to
investigate the facts, the existence of conflicting
testimony, and the ability of the pro se litigant to present
his or her claim. Id. After reviewing these factors,
the Court finds that the appointment of counsel is not
warranted at this time. This case is ...

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